Author: Swagatika Behera, Student at KIIT University, Bhubaneswar, Odisha.
ABSTRACT
The article generally focuses on how the administration exercises its power on the citizens. It also explains how the three organs of the government are related, judicial review is also being highlighted to put check upon the executives. The article furthermore emphasis on the fundamental rights of the people of the state and its relation with constitutionalism. It gives wider aspect of the constitution and how it is related to present-day constitutionalism. Further, it gives a positive aspect of how constitutionalism gives light on the welfare of the people.
Keywords: Judicial Review, Fundamental Rights, Constitutionalism.
INTRODUCTION
Constitution is the Supreme law of the land consisting of body of rules, doctrines and practices which forms the fundamental core principle of a political state. States having written constitution too have age-old traditions and customs but these necessarily does not stand as constitutional importance in every case though. Looking back we can trace that the word ‘constitution’ was first coined by Greek Philosopher Aristotle and according to his perspective constitution is the most important one of every State irrespective of how erratic may the government be. Constitution is the most systematic, organized, theoretical and normative writings was described by Aristotle in his writings. [1] India is the longest and second largest active constitution radiating constitutional supremacy through its principles, procedures, practices, rights, powers and duties of the government over which parliament cannot override it. Indian constitution holds its highest of supremacy as it was adopted by the Constituent Assembly being Dr. B.R Ambedkar as its founding father, guarantees six fundamental rights to its citizens.[2] Constitutionalism nowadays has taken to the heightens of important issue in India. It defines as the limited government and is essential in today’s democracy. Constitutionalism make it possible that none of citizens rights get hampered by ensuring welfare society. It checks on the government so that it does gets turned into dictatorial or authoritative.
Elements of constitutionalism[3]
- Sovereignty
- Constitutional supremacy and Rule of Law
- Representative Limited Government
- Separation of Power
- Civilian Control of the Military force
- Police governed by Law and Judicial Control
- An Independent Judiciary
All these elements of constitutionalism restricts power on the government and acts efficiently in controlling the government by sticking to the rule of law in hand to hand guarantees and protects fundamental rights.
NEGATIVE AND POSITIVE ASPECT OF CONSTITUTIONALISM
NEGATIVE ASPECT
Negative aspect stands like when it restricts or prevents any institution doing anything. It falls under negative criteria when it imposes restriction on the government while dispersing its functions. Constitution is the supreme law of the land and government is the representative of the state , so sometimes while executing its function it may act in a arbitrary manner in order to keep balance between the organs of the government, constitutionalism of the State makes it possible by putting restrictions on the government and giving the definition of limited government. [4]
POSITIVE ASPECT
Positive aspect of Constitutionalism stands as totally different from negative aspect it generally concentrates on the light of “Welfare State”. Positive Constitutionalism focuses on positive sense it generally works for the good of the people. It puts more emphasis on making institutions for people where their rights are recognized, guaranteed and protected. It gives light to the aggrieved people whose rights are infringed and gives protection to them by ensuring security and safety to them.
Negative and positive constitutionalism plays vital role in the running of the day–to-day business of the government. It gives wider perspective in the mind of the citizens where they could better understand and analyze the function of their representative government.
Constitutionalism in India. Constitutionalism almost in every state is well defined as limited government and so in India. Constitution does not guarantees constitutionalism which stands as that every country has a constitution but it may not adhere to the philosophy of the constitutionalism. In India , constitution and constitutionalism works side by side where in the case of S.R. Chaudhuri v. State of Punjab[5], in which the Supreme Court held that it is not necessary that constitution will always guarantee constitutionalism , in this what stands important is that the philosophy, customs and traditions should be upheld to determine constitutional validity in the government political system. Same statement was passed in the case of R.C. Poudyal v. Union of India.[6] Indian Constitution is quite different from others states, in India Constitution is the Supreme law of the land and beyond constitution no organ can go or discharge its duties. India constitutionalism provides limited government enshrines restrictions put on the powers of the government. So moving onto the different aspect of the constitution we can analyze a wider thought process-
ARTICLE 21
[7]Article 21of the Indian Constitution states protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to the procedure established by law. Here the article starts with the negative word ‘No’ which means deprived in relation to the word deprived used here. The main object here is there should not be any interference in the personal liberty of a man except according to the procedure established by law , clearly states in the article that this fundamental right has been provided against the state. In the of any violation then the aggrieved party is subjected to remedy under article 226.
Taking the article as a whole we can relate it to the concept of constitutionalism of India where we can say that the law is acting as limitation on the arbitrary powers of the executive and legislature. Furthermore it also involves American due process law called “Fundamental Fairness’’. This can be refer to the case of Swaran Singh v. State of U.P[8]., the court observed that unnecessarily constitutional power should not be exercised in a malafide way instead there should be fair play. The philosophy of constitutionalism should be upheld.
SEPARATION OF POWER
In India we follow the system of Parliamentary system but the Quasi-federal system also go side by side , where there is a boundary which acts as a separation of these three organs : the legislature, the executive and the judiciary. Separation of power is focused in Indian political system so that there is no invasion in each others organ , it even restricts on them so that they can easily discharge the power and act systematically. In the case of State (NCT of Delhi) v. Union of India,[9] Chief Justice Mishra observed that “ The essence of constitutionalism is the control of power by its distribution among several state organs or offices in such a way that they are each subjected to reciprocal controls and forced to cooperate in formulating the will of the state.”[10] Thus it can be coined in a manner that in India it can be seen that constitution guarantees constitutionalism.
JUDICIAL REVIEW
Judicial review is not mentioned in the Constitution still courts exercise this power as an effective instrument to check upon the station action. In the case of Keshavananda Bharti v. State of Kerala [11], the court observed that the basic structure of the constitution cannot be amendable if it is against any state action then it is subjected to judicial review. Further, we can see in the case of Naz Foundation v. Government of Delhi,[12] where the court decriminalized section 377 of Indian Penal Code. Therefore, it has evolved as a result of the implementation of reflexive constitutionalism. This how courts exercise judicial review keeping in mind the essence of constitutionalism and changing according to modern society.
CONCLUSION
To conclude, constitution and constitutionalism in India both play a major role in running the government and limiting the government in its access use of power. It even protects its citizens by guaranteeing fundamental rights from the scrutiny of the executives and legislature. Constitutionalism defines limited government by controlling its power in order to make fair play and to have smooth balancing in the functioning of the administration. It has also got evolved and developed with the space of the changing environment.
REFERENCES
[1] Spiro, Herbert John. “Constitution”. Encyclopedia Britannica, https://www.britannica.com/topic/constitution-politics-and-law. Accessed 27 January 2021.
[2] “The Constitution of India”, https://www.toppr.com/guides/civics/the-indian-constitution/the-constitution-of-india/. Accessed 27 January 2021.
[3] Ayush Verma.” Constitution and Constitutionalism: A study perspective in India”, https://blog.ipleaders.in/constitution-constitutionalism-study-perspective-india/. Accessed 27 January 2021
[4] ibid.3.
[5] (2001) 7 SCC 126
[6] 1993 AIR 1804, 1993 SCR (1) 891
[7] Vidhan Maheswari,’’ The Constitution of India Provides Fundamental Rights under chapter 3”. http://www.legalserviceindia.com/articles/art222.htm. Accessed on 27 January 2021
[8] 1993 AIR 1804, 1993 SCR (1) 891
[9] (2018) 8 SCC501
[10] Ibid 3
[11] (1983)4 SCC 225
[12] “Judicial Review”. https://www.lawctopus.com/academike/judicial-review-direct-result-reflexive-constitutionalism/ Accessed on 28 January 2021